Posted Saturday, July 23 2011 at 20:37
The position of Attorney-General (AG) — the last pivotal office in the justice sector — remains unfilled. Current AG Amos Wako has served in that post since 1991, and must vacate office by August.
Mr Charles Nyachae, the chair of the Constitution Implementation Commission, would like to see Mr Wako sent home yesterday.
That’s because he — and many others — believe Mr Wako is sabotaging the timely passage of reform laws.
Which begs the question! Why haven’t President Mwai Kibaki and Prime Minister Raila Odinga appointed the next AG? Let me state the bottom line upfront.
Which begs the question! Why haven’t President Mwai Kibaki and Prime Minister Raila Odinga appointed the next AG? Let me state the bottom line upfront.
This is my advice to the two principals. Internationally renowned lawyer Betty Murungi is most qualified to be next AG.
The AG will be the principal legal adviser to the state. In that position, the AG will play a key role in the reform of the state.
That’s why the next AG must be someone who understands — and fully internalises — the principles, values, and diktats of the new Constitution.
In my view, that can only be a person who played a key role in birthing the new Constitution.
The next AG cannot be a chameleon, a watermelon, or an anti-reformer. Nor can it be someone who was a bystander during the struggle for the new Constitution. Like Chief Justice Willy Mutunga, the new AG must be steeped in the discourses of human rights, democracy from below, and legality.
The next AG must understand that Kenya’s twin evils are corruption and impunity. She must have a solid record of fighting both vices. The office of the AG will embody the legality of the state.
That’s why the next AG must look, smell, talk, and walk like a saint. She must inspire confidence in the people by her very being. She must make people forget the previous occupants of that office.
That’s why the next AG must look, smell, talk, and walk like a saint. She must inspire confidence in the people by her very being. She must make people forget the previous occupants of that office.
Why? Because the AG’s office has historically been associated with arrogance, law-breaking, and impunity. Kenyans believe that the AG’s office has existed to protect the rich and powerful from the law. The next AG must change this sordid image with an impeccable record of fidelity to the law.
Perfect choice
Why do I believe that Ms Murungi is the perfect choice for AG? First, Ms Murungi is the full package. She towers over all the others who’ve been mentioned as possible AGs. She is an accomplished lawyer who was raised in the reform movement. She has founded, led, or worked with the country’s leading reformist groups.
These include FIDA — the pioneer women’s rights organisation — the Kenya Human Rights Commission — Kenya’s premier human rights organisation, Akiba Uhaki, and the Urgent Action-Africa Fund.
She has been a mentor and role model to many Kenyans in the reform movement. A respected legal practitioner, she knows the courts well. She combines one of the country’s top legal minds with empathy.
Second, Ms Murungi will bring instant international credibility to the office of AG. Under Mr Wako, the AG’s office was viewed internationally as a cesspool of impunity and illegality. Mr Wako never successfully prosecuted a “big fish”.
Every major scandal under his watch — Goldenberg and Anglo Leasing, in particular — has remained unattended. Although the next AG will not be the prosecutor — that job now belongs to an independent director of prosecutions — she must advise the state to fully comply with the law.
That will include fighting official corruption and impunity. Ms Murungi is the anti-Wako. She has extensive and deep connections to the highest councils at the United Nations, leading international NGOs, foundations, think-tanks and renowned universities.
A few examples will suffice. Ms Murungi is on the five-member board of directors for the Trust Fund for Victims at the International Criminal Court. She replaced Archbishop Desmond Tutu of South Africa.
She’s been a recipient of the Cardozo Law School human rights award in New York. Previous awardees are President Bill Clinton and Archbishop Desmond Tutu.
She was legal adviser to Rights & Democracy in Montreal, the International Criminal Tribunal for Rwanda, and the Sierra Leone truth commission. Ms Murungi was the chair of the women’s caucus that pushed for the Rome Statute of the ICC.
She’s served on the board of Kituo Cha Katiba in Kampala. She’s been a fellow at Harvard Law School.
Ms Murungi’s last official appointment was vice chair to the Truth, Justice, and Reconciliation Commission. She was probably the most credible and experienced member of the TJRC.
She only quit after the public lost faith in the TJRC because of accusations against its chair, Ambassador Bethuel Kiplagat.
Sense of integrity
Ms Murungi would bring the same sense of integrity and probity to the AG’s office.
She is known for asking the tough questions, keeping long hours, and treating everyone with dignity. She’s ethical. Her gender has nothing to do with her qualification to be AG.
She is known for asking the tough questions, keeping long hours, and treating everyone with dignity. She’s ethical. Her gender has nothing to do with her qualification to be AG.
The law requires the President to appoint the AG in consultation with the PM subject to approval by the National Assembly.
However, I think Kenyans want the AG appointed after an open competitive process.
I urge the President and PM to ask the Public Service Commission, or the relevant constitutional body, to publicly vet candidates for AG.
This will give the chosen one public credibility. If not, Kenyans will feel that like DPP Keriako Tobiko, the new AG will have been imposed on them. I bet Ms Murungi will emerge tops in open interviews.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.
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